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NYSC Orders All Witnesses To Be Present, All Documents Demonstrating Exactly When Bank Acquired Possession of the Note and Mortgage

NYSC Orders All Witnesses To Be Present, All Documents Demonstrating Exactly When Bank Acquired Possession of the Note and Mortgage


Bayview Loan Servicing, LLC

v

Bozymowski

00296-2010

Rosicki, Rosicki & Associates
Attorneys for Plaintiff
26 Harvester Avenue
Batavia, New York 14020

Lydia Bozymowski
Defendant Pro Se
8 Hofstra Drive
Greenlawn, New York 11740-1908

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated May 21, 2010, and supporting papers; and (2) prior Order of this Court, dated November 1, 2010; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the plaintiff’s application (seq. #001) in this foreclosure action is hereby denied for the reasons set forth herein; and it is further

ORDERED that plaintiff shall appear for a hearing on May 13, 2011, 10:00 a.m., at which time the Court will conduct an inquiry of the plaintiff’s witnesses concerning the information and documents submitted by the plaintiff in connection with this foreclosure action, and will determine what, if any, sanction to impose upon the plaintiff and/or the plaintiff’s attorney; and it is further

ORDERED that at the time of the hearing, the plaintiff shall produce the following witnesses to provide testimony under oath in response to all inquiries by the Court: (1) Margaret Burke Tarab, Esq., the attorney from plaintiff’s counsel’s firm who executed the December 13, 2010 attorney affirmation, which is purportedly compliant with the October 20, 2010 Order of the Chief Administrative Judge of the State of New York; (2) Karen Griffith, Vice President of plaintiff Bayview Loan Servicing, LLC, the individual who executed the February 2, 2010 affidavit in support of plaintiff’s application for an order of reference; and (3) Robert D. Repass, plaintiff’s Senior Vice President, identified in Ms. Tarab’s December 13, 2010 affirmation as the plaintiff’s representative with whom she communicated for purposes of executing her said affirmation; and it is further

ORDERED that at the time of the hearing, the plaintiff shall produce for Court inspection all of the documents and records reviewed by plaintiff’s counsel and plaintiff’s other representatives for purposes of submitting its application for an order of reference, including but not limited to the original note and mortgage, and all documents demonstrating exactly when the plaintiff acquired possession of the note and ownership of the mortgage in this case; and it is further

ORDERED that the plaintiff shall promptly serve, via first class mail, a copy of this Order upon the homeowner-defendant(s) at all known addresses, as well as upon all appearing parties (or upon their attorney[s] if represented by counsel), and shall promptly thereafter file the affidavit(s) of such service with the County Clerk; and it is further

ORDERED that failure to comply with any of the directives set forth herein shall result in [*2]the Court issuing any sanction the Court deems appropriate under the CPLR and/or Court Rules, including but not limited to waiver of any interest, attorneys fees and costs to which the plaintiff claims entitlement, as well as dismissal of the plaintiff’s complaint with prejudice.

In this foreclosure action, the plaintiff filed a summons and complaint on January 12, 2010. The complaint essentially alleges that the defendant-homeowner, Lydia Bozymowski, defaulted in payments with regard to the subject mortgage, dated April 22, 2004, in the principal amount of $225,000.00, for the premises located at 8 Hofstra Drive, Greenlawn, New York 11740. The original lender, Florida Bank, N.A. d/b/a Florida Bank Mortgage (“Florida Bank”), is alleged to have had the mortgage assigned to the plaintiff, Bayview Loan Servicing, LLC (“Bayview Loan”), by assignment dated November 25, 2009. The assignment was purportedly executed by Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Florida Bank. In its application (001), the plaintiff requested a default order of reference and amendment of the caption to remove the “Doe” defendants as parties.

By Order dated November 1, 2010, this Court referred the plaintiff’s application to a conference with the Court on December 15, 2010. As part of that Order, the plaintiff’s counsel was instructed to review the pending application prior to the conference “to determine whether or not such application is fully compliant with all foreclosure-related statutes, case law and Court Rules.” If so, counsel was to then “execute and submit to the Court at the conference the requisite attorney affirmation mandated by the October 20, 2010 Administrative Order of the Chief Administrative Judge for the State of New York.” With regard to such attorney affirmation, this Court’s November 1, 2010 Order stated that, “[i]f plaintiff’s counsel is unable for personal or professional reasons to execute the necessary affirmation, the pending application may be withdrawn without prejudice and with leave to resubmit upon proper papers, including the mandatory attorney affirmation.” The November 1, 2010 Order also warned counsel that “with regard to any scheduled court conferences or future applications, if the Court determines that such conferences have been attended, or such applications have been submitted, without proper regard for the applicable statutes, case law and Court Rules, or without regard for the required proofs delineated herein, the Court may, in its discretion, strike the non-compliant party’s pleadings or deny such applications with prejudice and/or impose sanctions pursuant to 22 NYCRR §130-1, and may deny those costs and attorneys fees attendant with the filing of such future applications.”

On December 15, 2010, a conference was held and plaintiff’s counsel submitted an attorney affirmation. Initially, the Court notes the plaintiff’s failure to submit proof of compliance with RPAPL §1304. For those actions commenced on or after September 1, 2008 and prior to January 14, 2010, RPAPL §1304 requires that, with regard to a “high-cost home loan” (as defined in Banking Law §6-l), or a “subprime home loan” or a “non-traditional home loan” (as defined in RPAPL §1304), at least 90 days before a lender or mortgage loan servicer commences a foreclosure action against the borrower, the lender or mortgage loan servicer must give the borrower a specific, statutorily prescribed notice. In essence, the notice warns the borrower that he or she may lose his or her home because of the loan default, and provides [*3]information regarding available assistance for homeowners who are facing financial difficulty. The specific language and type-size requirements of the notice are set forth in RPAPL §1304(1).

Pursuant to RPAPL §1304(2), the requisite 90-day notice must be “sent by the lender or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and if different, to the residence which is the subject of the mortgage. Notice is considered given as of the date it is mailed.” The notice must also contain a list of at least five housing counseling agencies approved by the U.S. Department of Housing and Urban Development, or those designated by the Division of Housing and Community Renewal, that serve the region where the borrower resides, as well as the counseling agencies’ last known addresses and telephone numbers.

This action was commenced on January 12, 2010. Therefore, barring any statutorily stated exceptions, if the subject loan being foreclosed upon qualifies as a “high-cost home loan,” a “subprime home loan,” or “non-traditional home loan,” the pre-commencement notice requirements of RPAPL §1304 will apply. Plaintiff, however, has failed to submit evidentiary proof, including an affidavit from one with personal knowledge, as to whether or not this action involves such a loan and, if so, proof of compliance with the applicable pre-commencement requirements of RPAPL §1304 or, in the alternative, an affidavit sufficient to show why such requirements do not apply. Such failure requires denial of plaintiff’s application for an order of reference. The boilerplate language in paragraph 4(c) of the complaint regarding compliance with RPAPL §1304 “if the underlying mortgage qualifies,” is ambiguous and is, therefore, insufficient to affirmatively show such compliance, particularly where, as here, the complaint is not verified by the plaintiff.

Plaintiff has also failed to submit a properly sworn affidavit in support of the requested relief. In this regard, CPLR §2309(b) requires that an “oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs.” Accordingly, for affidavits to have sufficient validity, a notary public witnessing signatures must take the oaths of the signatories or obtain statements from them as to the truth of the statements to which they subscribe their names (see, Matter of Helfand v Meisser, 22 NY2d 762, 292 NYS2d 467 [1968]; Matter of Imre v Johnson, 54 AD3d 427, 863 NYS2d 473 [2d Dept 2008]; Matter of Leahy v O’Rourke, 307 AD2d 1008, 763 NYS2d 508 [2d Dept 2003]).

In support of its application for an order of reference, the plaintiff submits an affidavit from Karen Griffith, Vice President of plaintiff Bayview Loan; however, there is no showing that the notary who witnessed Ms. Griffith’s signature took an oath from Ms. Griffith, and no statement by Ms. Griffith attesting to the truth of the statements contained in her affidavit. Instead, there is a statement disguised to appear as a proper oath. Rather than swearing to the truth of the statements contained in her affidavit, Ms. Griffith merely attests in paragraph 12 to the truth of the contents of “the [plaintiff’s] complaint” (emphasis added). Such statement is insufficient to satisfy the form of oath required by CPLR §2309(b) with regard to Ms. Griffith’s [*4]affidavit. This is particularly pertinent here because additional submissions by the plaintiff raise questions as to the reliability of Ms. Griffith’s affidavit, as well as the plaintiff’s standing to bring this action.

A plaintiff has standing to maintain the action only where the plaintiff is the proper assignee of the mortgage and the underlying note at the time the foreclosure action was commenced (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]; Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546, 755 NYS2d 730 [2d Dept 2003]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 887 NYS2d 615 [2d Dept 2009]; First Trust Natl. Assn. v Meisels, 234 AD2d 414, 651 N.Y.S.2d 121 [2d Dept 1996]). It remains settled that foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity (U.S. Bank, N.A. v Collymore, supra; Kluge v Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dept 1988]). Furthermore, a plaintiff has no foundation in law or fact to foreclose upon a mortgage in which the plaintiff has no legal or equitable interest (Wells Fargo Bank, N.A. v Marchione, supra; Katz v East-Ville Realty Co., 249 AD2d 243, 672 NYS2d 308 [1st Dept 1998]). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (U.S. Bank, N.A. v Collymore, supra).

To support its contention that Bayview had proper standing to commence this action, Ms. Griffith’s alleges in paragraph 6 of her affidavit that “[t]he loan was acquired by and in the possession of the Plaintiff on April 22, 2004″ (emphasis added). Notably, this is the same date the mortgage documents were executed by the defendant-borrower to the original lender, Florida Bank. Even if this nebulous statement by Ms. Griffith were construed to mean that Bayview was in possession of the “note and mortgage” on April 22, 2004, such statement fails to show that the plaintiff was the holder of the note and mortgage when the action was commenced, nearly six years later (see U.S. Bank, N.A. v Collymore, supra; Federal Natl. Mtge. Assn. v Youkelsone, supra; Wells Fargo Bank, N.A. v Marchione, supra; First Trust Natl. Assn. v Meisels, supra). On the one hand, Ms. Griffith alleges in paragraph 6 of her affidavit that the loan was in the possession of the plaintiff on April 22, 2004. On the other hand, in the same paragraph of her affidavit she states that the mortgage “instruments were assigned to [the Plaintiff] by [assignment] dated November 25, 2009.” Compounding this confusion is the handwritten statement on the assignment, asserting that it was “effective as of: 7/1/09.”

Despite these inconsistent statements of fact in support of ownership, there is an additional submission that suggests the true owner is or may be CitiMortgage, Inc. (“CitiMortgage”), a non-party to this action. In this regard, affixed to the last page of the note is an undated indorsement from Florida Bank to CitiMortgage. This indorsement, which was executed by Jacqueline Ring as Florida Bank’s Vice President, specifically states, “WITHOUT RECOURSE PAY TO THE ORDER OF CITIMORTGAGE, INC.” Thus, the plaintiff’s assertion that it possessed “the loan” on the same date it was executed by the borrower, and the inconsistent assertion that plaintiff obtained the mortgage instruments by assignment dated [*5]November 25, 2009, is rebutted by the fact that when the note was indorsed to CitiMortgage, the mortgage passed to CitiMortgage as an inseparable incident (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 [2d Dept 2009]. Therefore, without the valid transfer of the note to the plaintiff, the assignment of the mortgage to the plaintiff was a nullity (id.; Kluge v Fugazy, 145 AD2d 537, 536 NYS2d 92 [2d Dept 1988]). Curiously, evidence of the indorsement to CitiMortgage by Florida Bank was not in the plaintiff’s affidavit or attorney affirmation.

The plaintiff has also failed to comply with this Court’s November 1, 2010 Order regarding submission of an attorney affirmation in the form and with the language required by the October 20, 2010 Administrative Order of Hon. Ann Pfau, New York’s Chief Administrative Judge. As explained in this Court’s November 1, 2010 Order, “[p]ursuant to the Administrative Order of the Chief Administrative Judge for the State of New York, dated and effective October 20, 2010, plaintiff’s counsel in foreclosure actions must file with the court in all such actions an affirmation in a form prescribed by the Order.” It remains clear from the language of Judge Pfau’s October 20, 2010 Order, as well from the language of the official mandatory affirmation and its preamble, that the intent of the new Rule is to assure accountability for and accuracy of all court filings in foreclosure actions.

With the intent of the new Rule in mind, this Court requires that after October 20, 2010, the mandatory affirmation must accompany all applications made at any and all stages of foreclosure proceedings. Obviously, a mere single filing at only one phase of the case would not comport with the intent of Judge Pfau’s Order. Indeed, if compliance were sufficient by filing the requisite affirmation at only one phase, improper or untruthful papers could be filed at other phases with virtual impunity. Therefore, plaintiff’s failure to submit the official mandatory affirmation in the form and with the language prescribed by Judge Pfau’s October 20, 2010 Order must result in denial of the requested relief.

In relevant part, the Court’s November 1, 2010 Order also included, with italicized emphasis, the warning set forth in the last sentence of the preamble paragraph of the official mandatory affirmation, which states: “The wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel” (emphasis added). Despite this language required by the official mandatory affirmation, and despite this Court’s emphasis of that language in its November 1, 2010 Order, the December 13, 2010 affirmation signed by plaintiff’s attorney, Margaret Burke Tarab, Esq., does not include such language. Also, as required by paragraph 3 of the official mandatory affirmation, the plaintiff’s attorney must affirm that “[b]ased upon my communication with [plaintiff’s representative], as well as upon my own inspection of the papers filed with the Court and other diligent inquiry, I certify that, to the best of my knowledge, information, and belief, the Summons and Complaint and all other documents filed in support of this action for foreclosure are complete and accurate in all relevant respects . . .” (emphasis added). In counsel’s December 13, 2010 affirmation, the word “diligent” was omitted and replaced with the word “reasonable.” In addition, as required by paragraph 4 of the official mandatory affirmation, the plaintiff’s attorney must acknowledge that he or she understands “that [*6]the Court will rely on this Affirmation in considering the [plaintiff’s] application.” In paragraph 4 of counsel’s affirmation, however, she omitted the specific mandatory language and replaced it with a generic acknowledgment, that “I am aware of my obligations under New York Rules of Professional Conduct (22 NYCRR Part 1200) and 22 NYCRR Part 130.”

Although the Court has heard several attorneys for plaintiff banks informally question Judge Pfau’s authority to have issued the October 20, 2010 Order in the first instance, this Court gives full deference to her Honor’s Order (see NY Const, art VI, § 28). Counsel for plaintiff banks have also claimed that the attorney affirmation required by Judge Pfau’s Order was unofficially amended on November 18, 2010 and posted on the internet in amended form. Counsel, however, has failed to submit an order by Judge Pfau executed after her October 20, 2010 Order, or any other legitimate legal authority, in which the language of the official mandatory affirmation was modified. Therefore, this Court requires counsel to submit an attorney affirmation in the specific form and with the specific language originally mandated by her Honor’s Order of October 20, 2010.

In this Court’s November 1, 2010 Order, the Court warned of potential sanctions, pursuant to 22 NYCRR §130-1, if a party submits an application “without proper regard for the applicable statutes, case law and Court Rules.” Indeed, although the plaintiff’s December 13, 2010 attorney affirmation does not include certain language mandated by Judge Pfau’s October 2010 Order, the affirmation does, nevertheless, state at paragraph 4 that counsel is “aware of [her] obligations under New York Rules of Professional Conduct (22 NYCRR Part 1200) and 22 NYCRR Part 130.” With regard to sanctions, 22 NYCRR §130-1.1 states, in pertinent part that:

(a) . . . [T]he court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Part. . . .

(b) The court, as appropriate, may . . . impose such financial sanctions against either an attorney or a party to the litigation or against both. Where the . . . sanction is against an attorney, it may be against the attorney personally or upon a partnership, [or] firm . . . that has appeared as attorney of record. The . . . sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.

(c) For purposes of this Part, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false. [*7]

. . . In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, or should have been apparent, or was brought to the attention of counsel or the party.

(d) An . . . imposition of sanctions may be made . . . upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.

At the December 15, 2010 conference, plaintiff’s counsel represented to the Court that the plaintiff’s submitted application was, in fact, fully compliant with all applicable statutes, case law and Court Rules. Counsel then tendered to the Court Ms. Burke Tarab’s December 13, 2010 affirmation, which is purported to be compliant with the requirements of Judge Pfau’s Order of October 20, 2010. In counsel’s affirmation, she identifies Robert D. Repass, plaintiff’s Senior Vice President, as the representative with whom she communicated on December 10, 2010 for purposes of executing her affirmation.

According to paragraph 2 of the affirmation, Mr. Repass reportedly informed Ms. Tarab that he “personally reviewed plaintiff’s documents and records relating to this case for factual accuracy.” He also allegedly “confirmed the factual allegations set forth in the Complaint and any supporting affirmations filed with the court, as well as the accuracy of the notarizations contained in the supporting documents (Plaintiff’s Affidavit[s]) filed therewith.” Neither the proofs submitted in support of the order of reference, nor the mandatory attorney affirmation are sufficient to grant an order of reference.

Based on the foregoing, the plaintiff’s application for an order of reference is denied. The nature of the proofs provided by the plaintiff, from all sources, compels the Court to order hearing in accordance with 22 NYCRR §130-1 to determine if the conduct undertaken by the plaintiff and/or plaintiff’s counsel was “frivolous” as defined in 22 NYCRR §130-1.1(c) and what, if any, sanction should be imposed.

This constitutes the Order of the Court.

Dated:February 17, 2011

PETER H. MAYER, J.S.C.

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